Findings Of Fact The following findings of fact are based upon the evidence presented at hearing, the demeanor of witnesses, and stipulations of the parties: Respondent was employed by Petitioner as a 4th and 5th grade teacher under continuing contract since June, 1980. During his employment, he was evaluated as a satisfactory teacher. The parties stipulated that on May 19, 1987 at approximately 1:45 a.m., Respondent committed fellatio with another male adult. They further stipulated that Respondent does not claim that this was a single, isolated occurrence. The incident on May 19, 1987 took place in North Shore Park, St. Petersburg, which is an area known to the local police as a place for homosexual activity. North Shore Park is approximately 6 1/2 miles from the elementary school at which Respondent taught fourth grade. It is a public park extending from Sixth to Nineteenth Avenues, North, and bordered on the east by Tampa Bay and on the west by Shore Drive. The park has a public swimming pool, tennis courts, parking areas and a public beach. On the morning of May 19, 1987, Respondent drove to the park, parked his car, and walked from Seventeenth Avenue, North, to Thirteenth Avenue, North, where he encountered the other male. Respondent believed they were alone. They walked to a bench on the public beach and engaged in fellatio. Police Officer Thad Crisco, St. Petersburg Police Department, observed Respondent performing fellatio on the other male. Officer Crisco, who was patrolling the park on foot, was approximately twenty feet away from Respondent. He observed them with the use of an infra-red night scope, but he testified that the night scope was not required or necessary to observe the incident due to the moonlight and other available lighting. Crisco was behind a palm tree, but had a clear line of vision over a four foot high sea wall which separated him from Respondent and the other male. There was also a lit public parking area about 100 feet from where Respondent was observed. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place. On or about May 27, 1987, Respondent was suspended with pay by Superintendent Scott Rose, who also recommended his dismissal by the School Board, effective June 25, 1987. The Superintendent's action and recommendation resulted from the incident on May 19, 1987. The School Board approved the Superintendent's recommendation for dismissal on June 25, 1987, and Respondent was informed of this action by letter dated July 21, 1987. Respondent timely sought this hearing on his dismissal. On or about June 12, 1987, Respondent entered a plea of no contest to the criminal charges arising out of the incident at North Shore Park, and an Order Withholding Adjudication of Guilt and Placing Defendant On Probation was entered on June 12, 1987 in Case Number CTC 87-10343 MMANO, County Court for Pinellas County. Respondent was placed on six months probation, ordered to perform ten hours of community service and prohibited from entering any parks in Pinellas County. Respondent's probation was terminated early by Order entered on October 15, 1987 since he had satisfied all terms and conditions of his probation. By letter dated October 26, 1987, the Commissioner of Education found there was no probable cause "at this time" to suspend or revoke Respondent's teaching certificate in connection with this incident. Within the month following the incident in North Shore Park and his arrest, Respondent was the subject of one article in the St. Petersburg Times and three articles in the Tampa Tribune, Pinellas Edition. The parties stipulated that the St. Petersburg Times has a daily circulation of approximately 285,000 in Pinellas County, and the Pinellas Edition of the Tampa Tribune has a daily circulation of approximately 11,000. Based upon the testimony of Robert Welch, Principal of Bay Point Elementary School, Nancy Zambito, Director of School Operations, and Superintendent Rose, all of whom were accepted as experts in education, it is found that Respondent's action on May 19, 1987, his arrest and plea of no contest, and his being placed on probation are inconsistent with a public school teacher's responsibility to set an example for the students he teaches, undermines the confidence, trust and respect which parents and students should have in a teacher, evidences extremely poor judgement for one in whose custody the educational welfare of fourth graders is placed, and can reasonably be expected to impair his effectiveness as a teacher and lead to serious discipline problems with students if he returns to the classroom. Respondent even expressed concern about the embarrassment his actions caused for the school district. Through the testimony of Thomas Auxter, Ph.D., who was accepted as an expert in ethics, Hernan Vera, Ph.D., who was accepted as an expert in sociology, and Harry D. Krop, Ph.D., who was accepted as an expert in psychology, Respondent sought to establish that the incident on May 19, 1987 was a private, consensual act, without demonstrable or intentional injury or infliction of harm upon others outside the act. Dr. Auxter expressed the opinion that the act was not immoral since Respondent had a reasonable belief that no one else was present, and the act was not demonstrably or intentionally harmful. According to Dr. Auxter, one has to consider the time and place where an act occurs, as well as a person's intentions, in determining if it is an immoral act; circumstances are very important. Thus, an act performed at 1:45 a.m. may be a private sex act, while the same act at 1:45 p.m. in the same place may be clearly intentional, observable and offensive to others, and therefore be immoral. Dr. Vera expressed the opinion that Respondent's behavior did not constitute public behavior since the circumstances were private. Again, the time of the morning when the incident occurred was critical to Dr. Vera's opinion. Dr. Krop testified that school children would not necessarily be negatively affected by the incident, and that Respondent is capable of mitigating the effect of the incident on his ability to teach. The testimony of Drs. Auxter and Vera concerning the private nature of the act of fellatio in this case is specifically rejected based upon the testimony of Officer Crisco and Sergeant Earl J. Rutland, St. Petersburg Police Department. Crisco was only twenty feet away from Respondent at the time of the incident, with a clear line of sight. Respondent and the other male were clearly visible in the moonlight without having to use the night scope. The act occurred in a public park, and on a public beach. According to Sergeant Rutland, North Shore Park has a great deal of public activity at all hours of the day and night, and much of that activity results in complaints to the police. The very fact that Respondent went to this area at 1:45 in the morning looking for someone to engage in homosexual activity with, confirms the fact that members of the public frequent this area at all hours. Thus, he had no reasonable expectation that they would be alone on this beach, even at 1:45 a.m. Respondent did commit a sexual act, fellatio, in public on May 19, 1987. Dr. Vera testified that cultural norms require that sexual acts be performed in private, and Dr. Auxter acknowledged that just one violation of said norm can bring a person into disgrace and disrespect. The testimony of Dr. Krop concerning the effect of this incident on children and parents, and on Respondent's ability to teach, is outweighed by the testimony of Welch, Zambito, and Superintendent Rose. Krop was not accepted as an expert in education, and demonstrated little experience working with public school children and their parents when compared with the vast experience of Petitioner's experts.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing Respondent from employment. DONE AND ENTERED this 19th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. APPENDIX (DOAH Case No. 87-2849) Rulings on Petitioner's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5. Adopted in Findings of Fact 2, 3. 6-9 Adopted in Findings of Fact 6, 14. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in Finding of Fact 11. Adopted in Findings of Fact 3, 14. 14-16 Rejected as cumulative and unnecessary, but considered as the basis for accepting the witness as an expert in education. 17-20 Adopted in Finding of Fact 12. 21 Rejected as irrelevant and also hearsay. Rulings of Respondent's Proposed Findings of Fact: 1-2 Adopted in Findings of Fact 1, 4, 8. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary. Rejected in Findings of Fact 6, 14. Adopted and Rejected in Findings of Fact 6, 14. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant. 7-8 Adopted in Finding of Fact 12. Rejected as irrelevant. There was evidence that Respondent initially considered resigning and then Petitioner acted expeditiously to take disciplinary action. These events may have affected the level of community reaction. Adopted in Findings of Fact 7, 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. 13-14 Rejected as unnecessary and as not based upon competent substantial evidence. While the ethical analysis set forth by Dr. Auxter represents one expert's opinion, it was not shown that his opinion, albeit an expert opinion, competently and substantially represents 2500 years of study and thought. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected. Rejected as Finding of Fact 14. 17-30 Adopted in part and Rejected in part in 13 and 14; otherwise Rejected as irrelevant and unnecessary. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected. Adopted in Finding of Fact 13. Rejected in Finding of Fact 15. Rejected as unnecessary since Dr. Krop's ultimate opinion is rejected. 35-38 Rejected in Findings of Fact 12, 15. 39 Rejected as argument on the evidence rather than a Finding of Fact. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 33518-4688 Bruce P. Taylor, Esquire School Board Attorney Post Office Box 4688 Clearwater, Florida 33518-4688 Robert F. McKee, Esquire Charleen C. Ramus, Esquire KELLY & McKEE, P.A. Post Office Box 75638 Tampa, Florida 33605-0618 =================================================================
Findings Of Fact Wright holds teaching certificate number 109682, covering the areas of elementary education and junior college. This certificate was issued on October 4, 1978, and is valid until 1989. Wright is employed by the Duval County School Board and is currently assigned to the Media center in Jacksonville, Florida. Wright has been a teacher with the Duval County School Board since 1962 and was a teacher at Mamie Agnes Jones Elementary School for 17 years, until this incident resulted in reassignment to the Media center. Wright attempted to motivate students by offering them money and other rewards for achieving good grades. He visited in other classrooms and took interest in students that were not in his class. One student he singled out, who was not in his class, was Lillian Simone Allen. He says he singled her out because "he saw potential in her." Wright talked to Ms. Allen's teacher on several occasions about her grades and he talked to Ms. Allen directly. As an incentive, he entered into a "bet" with Ms. Allen whereby she would receive money from him if she made the A/B Honor Role. On February 2, 1987, Ms. Allen walked to school as usual and went to the cafeteria with her friends. Shortly thereafter, Wright entered the cafeteria and said hello to the group. Ms. Allen did not say hello and Wright asked her why she did not respond. Ms. Allen finally said hello. Wright then asked her some questions about her grades and whether she needed any help. Ms. Allen went outside to wait for the buses to arrive with other friends on board. When they arrived, the group went to the playground. After playing for a few minutes, Ms. Allen and some friends headed for the library. On the way, Wright saw her and called her over. He asked her to come to his room to discuss her grades. Wright unlocked his classroom and both entered. He closed the door behind them. Ms. Allen remained standing by the door until Wright called her over to some cabinets along one wall. The area of the room where the cabinets were located was out of the view of the door and the only window in the room. Ms. Allen ended up sitting on the low cabinet. Wright was sitting next to her. A male student in Wright's class entered the room to place his books on his desk. Wright moved away from Ms. Allen when this student was in the room. After the student left, Wright began putting papers in the high cabinet next to where Ms. Allen was sitting. Up until that moment, Wright had been asking Ms. Allen about her grades and whether she needed help with her studies. After the student left, Wright moved over next to Ms. Allen and began rubbing her shoulder. Then he ran his hand down and rubbed her hip and thigh. Wright then stepped in front of Ms. Allen and asked her bra size. Using both hands, Wright touched and rubbed Ms. Allen's breasts. Wright heard the door handle turn and stepped away from Ms. Allen. A female student who was a friend of Ms. Allen's entered the room to drop off her books. As soon as this student, Lakia, left the room, Ms. Allen jumped up and left the room. Ms. Allen was shocked and frightened by this incident. At the time she was twelve years old. She was mature enough that she was wearing a bra, but no teacher had ever touched her in this manner. She is now scared of males and male teachers. When she left the room, Ms. Allen went out to the playground and talked to her friend, Lakia. She then went and told her teacher, Ms. Miles, who in turn took Ms. Allen to the principal's office. An investigation was conducted initially by the principal, Mr. Hurst. Wright denied touching Ms. Allen. A further investigation was conducted by Police Officer Norman of the School Board's Security Office. Wright told Norman that he could have accidently brushed against the left side of Ms. Allen's body. Now Wright denies making this statement. On or about March 4, 1987, Wright was arrested and charged with three counts of lewd and lascivious assault upon a minor child in violation of Section 800.04, Florida Statutes. Two additional victims were mentioned in the information, but no testimony regarding those children was presented in this proceeding. The information filed on March 13, 1987, charged Wright with lewd, lascivious or indecent acts upon minor children. Wright entered into a Deferred Prosecution Agreement whereby he was placed on 24 months probation with the special conditions that he perform 80 hours of community service, that he have no contact directly or indirectly with the victims, that he not be employed as a teacher at Mamie Agnes Jones Elementary, and that he attend Arlington Psychological Center for evaluation and successful counseling. In exchange for the Deferred Prosecution Agreement, the State Attorney's Office nol prossed the Information. According the Mr. Hurst, the principal, there was publicity about these events at the time and teachers, parents and students were aware of the arrest. Since that time the matter has died down and people no longer ask about it. According to Raymond Bailey, Director of Certified Personnel at the Duval County School Board, if the allegations are shown to be true, the acts are ones of gross immorality or moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; and the acts are personal conduct which seriously reduces Wright's effectiveness as an employee of the School Board; the acts violate Rules 6B-1.006(3)(e)(f), and (h), in that they exposed a student to unnecessary harassment or disparagement, they intentionally violated or denied a student her legal rights, and they exploited his professional relationship with a student for personal gain or advantage. In making these findings regarding the actual events of this incident, it recognized that Wright denies that he touched Ms. Allen in an inappropriate manner. It is also recognized that Ms. Allen's testimony contains some inconsistencies, such as the date of the event. Viewing the testimony as a whole, however, it is found that Ms. Allens testimony the more credible and that Wright's testimony is self-serving and inconsistent with statements made to the principal and the Police Officer during the investigations.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that The Department of Education, Education Practices Commission, enter a Final Order finding Ira B. Wright guilty of the violations charged and permanently revoking his teaching certificate number 109682. DONE and ENTERED this 26th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-2474 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education, Education Practices Commission Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5(4&5) ; 6(6); 7- 9(7); 10&11(8) ; 12(9&10) ; 13(11); 14(10); 15-17(11); 18- 20(12-14); 22(15); 23&24(16) ; 25-28(17-20); and 29-33(20). Proposed findings of fact 21 and 34 are unnecessary or Irrelevant. Specific Rulings on proposed Findings of Fact Submitted by Respondent, Ira B. Wright Each of the following proposed findings of fact are adopted In substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3(2); 14(4); 20(21); and 26(3). Proposed findings of fact 4-9, 18, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10-12, 27 and 28 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 13, 15-17, 19, and 21-25 are Irrelevant. COPIES FURNISHED: Lane Burnett 331 East Union Street Suite 2 Jacksonville, Florida 32202 David A Hertz 1601 Atlantic Boulevard Jacksonville, Florida 32207 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 =================================================================
The Issue Whether the Respondent, Darrell Timothy Roundtree (Respondent), committed the violations alleged in the Administrative Complaint dated May 30, 2006, and, if so, what penalty should be imposed. The Respondent has denied any and all wrongdoing.
Findings Of Fact At all times material to the allegations of this case, the Respondent was a teacher employed by the Broward County Public School District. He was assigned duties as a physical education teacher during the 2003/2004 school year at Walker Elementary School. The Respondent holds a Florida Educator’s Certificate and is subject to the provisions of law governing the conduct and discipline of teachers within the state. The Petitioner is responsible to investigate and prosecute complaints against persons who hold Florida Educator’s Certificates who have allegedly violated provisions of law. In this case, the Petitioner filed a six-count Administrative Complaint against the Respondent following an investigation of charges that came from the Broward County School District. Although the allegations in the instant case are not the first disciplinary concerns regarding the Respondent, the instant charges, if proved, are sufficient to warrant disciplinary action against the Respondent's teaching certificate. Prior allegations against the Respondent resulted in a Letter of Concern being placed in his file based upon a claim that he had tweaked the nipples of a seven-year-old student. A second charge was not prosecuted due to the lack of cooperation by the alleged victim and his parent. The Respondent resigned his employment with the Broward County School District on September 16, 2005. The resignation followed an investigation into the conduct that is the subject matter of the instant proceeding. Sometime in 2003 the Respondent started a business for the purpose of providing male escorts. As depicted in this record, males hired through the Respondent's company were dispatched to parties or events and asked to dance and provide male companionship for the attendees of the party. Although prostitution was not the stated goal of the enterprise, it was not without possibility given the nature of the information describing the males. Pictures of the males were posted to the Respondent's website with listings as to sexual preference, age, and dimension of the males' anatomy. Although he initially denied involvement in the website, the record is clear the Respondent took pictures of partially nude males for the purpose of posting them on the website, SouthFloridaThugz.com. One of the males was a student in the Broward County GED program. The student, J. M., heard about the Respondent's business through a friend. A partially nude picture of J. M.'s friend was posted on the Respondent's website. According to J. M., the Respondent would take pictures of the males, post them for review, and schedule "parties" for the "clients" to attend. J. M. was scheduled to attend one such party. Based upon his conversation with the Respondent, J. M. expected to attend a party, dance nude for the attendees, and receive $300.00 for compensation. From that $300.00 J. M. expected the Respondent to receive a portion of the compensation. J. M. believed that the party would have women as well as men in attendance. J. M.'s friend had suggested that sometimes "safe sex" might occur. When he got to the party, J. M. was stunned to find that only men attended. He did not expect to be watched by gay men. He did not agree to that and insisted on leaving. He returned the $300.00 and told the Respondent he would not "do business" with him. Later J. M. went to authorities to file a complaint against the Respondent. J. M.'s complaint led to an investigation by the Broward County School District. Thereafter, the Respondent's school-issued computer was examined. The school-issued computer was used to access adult websites, chat sites, and other inappropriate sites. Petitioner's Exhibits 6 and 8 show a complete listing of the sites. The Respondent claimed that the computer use was not his, but such denial has not been deemed credible. After the matter was fully investigated by the Broward School District, it was determined that the Respondent had lost his effectiveness with the school system. The instant case was investigated and prosecuted over a period of time within which the Respondent and others gave multiple statements. The Respondent gave inconsistent and contradictory statements on more than one occasion. The student, J. M., was deemed the more credible of the two. Further, it is determined that the computer history of the Respondent's school-issued computer clearly and unambiguously established that the Respondent accessed inappropriate websites and chat rooms. It is determined that the Respondent did not verify the age of J. M. before making the pictures of his nude torso and groin area. Further, the Respondent did not maintain records to verify that the other nude and partially nude males depicted on the website were adults. Finally, it is determined that the purpose of the website was not for "dancing." The depiction of the males' penises in a state of arousal would not suggest or relate to any dancing ability. The Respondent's claim that his privacy has been invaded is unfounded. Teachers in the State of Florida are held to a high standard of conduct. It is expected that a school- issued computer may be subject to inspection by school authorities. The Respondent has taught for approximately 21 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the Respondent’s teaching certificate. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Darrell Timothy Roundtree 2388 South Oakland Park Drive, Apartment 202 Oakland Park, Florida 33309
The Issue Whether the Respondent, Wayne Dickens, should be terminated from his employment as an instructor with the Petitioner, Polk County School Board.
Findings Of Fact Respondent, Wayne Dickens, is qualified to teach in the state of Florida and currently holds Florida Teacher's Certificate No. 623449. Respondent was employed under contract as an instructor by the Petitioner, Polk County School Board, from 1989 until his termination on October 11, 1994. Respondent is currently 38 years old. During the 1993-1994 school year, August 8, 1993 to June 6, 1994, Respondent was employed as an instructor at the Ridge Vocational School in Polk County. Respondent's primary duties were to instruct and assist adult students in preparing to take the examination for the Graduate Equivalency Degree (GED). The GED program is designed for the sole purpose of preparing the students for the GED examination. Students do not pass or fail the program and Respondent did not administer any tests or otherwise grade the students in the GED program. Mrs. Leona Smarte was enrolled as a student in the GED program at Ridge Vocational School from October 1993 to May 29, 1994. Respondent instructed and assisted Mrs. Smarte in preparation for the GED examination. Mrs. Smarte did not complete the GED program. Mrs. Smarte is currently 38 years old. During the summer of 1994, Mrs. Smarte's husband, Charles Smarte, became suspicious that Mrs. Smarte might be romantically involved with another man. On or about September 1, 1994 Mr. Smarte confronted his wife with these suspicions. Mrs. Smarte at first denied that she was romantically involved with another man. Upon further questioning by her husband, Mrs. Smarte then stated that she had an affair with a fellow student who lived in Orlando. When her husband did not believe that account, Mrs. Smarte stated she had been involved with a man she named as Kenneth Jones. Her husband investigated this account and discovered that Mrs. Smarte had fabricated her statements concerning a Kenneth Jones. Mr. Smarte then found a business card of the Respondent, Wayne Dickens, in Mrs. Smarte's purse. The business card also contained Respondent's home phone number. Mr. Smarte confronted his wife with the Respondent's business card and Mrs. Smarte then stated she had been having an affair with the Respondent. She further told her husband that she had sexual activity with the Respondent on four or five occasions. Later she told her husband that she had been sexually involved with the Respondent approximately once a week during the summer of 1994 for a total of twelve to fourteen occasions. At hearing, Mrs. Smarte testified that she had been romantically involved with the Respondent on five occasions. She stated that the first occasion was on May 29, 1994 at the Royal Inn motel in Lakeland, Florida. She further testified that there were three other occasions at the Respondent's home in Lakeland. Mrs. Smarte testified that her final romantic encounter with the Respondent occurred on September 1, 1994 at the Motel 6 on Highway 27. Respondent testified on his own behalf and denied any romantic relationship with Mrs. Smarte. In this respect, Respondent's testimony is deemed more credible. Respondent has been consistent in his denial of any contact with Mrs. Smarte outside the classroom. Since February 1994, and at all material times hereto, Respondent has been engaged to be married to another instructor employed with the Polk County School Board. Respondent's only confirmed contact with Mrs. Smarte was as an instructor in a classroom setting. It is not uncommon for instructors of adult students in the GED program to provide the adult students with business cards, and in this respect, Respondent provided his business card and home phone number to several of the adult students, including Mrs. Smarte, that he was instructing in the GED program at Ridge Vocational School during the 1993-1994 school year. On September 12, 1994 Charles Smarte filed an affidavit with the Polk County School Board setting forth allegations of sexual misconduct by the Respondent. The matter was investigated by Dale McDonald, an investigator employed by the Polk County School Board. Mrs. Smarte stated to the investigator that she and the Respondent had been together on three occasions at motels, the most recent being at the Motel 6 on September 1, 1994. Mrs. Smarte did not mention an encounter with Respondent at the Royal Inn, nor did she tell the investigator she had met the Respondent at his home. The Polk County School Board's Investigator conducted a review of the motel records in the area. The investigation failed to confirm that the Respondent had rented a room at the Motel 6, or any other local motel, on September 1, 1994, or that Mrs. Smarte and the Respondent had been observed at any local motel at that time. Similarly, there is no confirming evidence that the Respondent rented a room on May 29, 1994 at the Royal Inn. The investigation further failed to produce any independent corroborating evidence to show that Respondent was seen in the company of Mrs. Smarte outside of the classroom by any other student, any school personnel, or any neighbors, friends, or relatives of the Respondent or Mrs. Smarte during the five month period from May to September of 1994 when the sexual misconduct is alleged to have occurred. It is the policy of the Polk County School Board that any sexual relationship between an instructor and a registered student, regardless of the age of the participants, constitutes misconduct, and has a detrimental effect on the instructor's ability to perform his responsibilities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order reversing its decision to terminate the Respondent's employment as an instructional employee, and reinstate Respondent with pay. RECOMMENDED in Tallahassee, Leon County, Florida, this 17th day of March, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1995. APPENDIX The following constitute rulings on proposed Findings of Fact. Petitioner's Proposed Findings of Fact 1. - 3. Adopted. - 6. Rejected as not supported by the evidence. Adopted except to the extent Mrs. Smarte actually had affair with Respondent. Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact 1. -15. Adopted and incorporated. COPIES FURNISHED: Dr. John A. Stewart, Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830-0391 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Donald H. Wilson, Jr., Esquire 150 Davidson Street Bartow, Florida 33831-1578 Mark Herdman, Esquire 34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
Findings Of Fact Vincent P. Durso (Respondent) holds Florida teaching certificate number 380932 valid through 1997. He is certified in the areas of Biology, Social Sciences and Middle Grades. From March 1984 to June 1984, the Respondent was employed as a teacher at Leto High School by the Hillsborough County School Board. From July 1984 to August 1985, the Respondent worked as a job training specialist by the Marion County School Board. From August 1985 to October 1987, the Respondent was employed as a teacher at Chamberlain High School by the Hillsborough County School Board. From February 1988 to August 1988, the Respondent was employed as a teacher at Carver Junior High School by the Los Angeles, California Unified School District. Since 1989, the Respondent has been employed by the School Board of Pinellas County under a professional services contract issued pursuant to Section 231.36(1)(a), Florida Statutes. While at Chamberlain High School, the Respondent taught a peer counseling class during the 1986-87 school year. The class was intended to address the needs of students at risk of dropping out of school. Roxanna Fitzgerald (Fitzgerald) and Jeaneen Boyas (Boyas) were students in the Respondent's peer counseling class during the 1986-87 school year. Ms. Fitzgerald is now known as Roxanna Fitzgerald Violette. Ms. Boyas is now known as Jeaneen Boyas Riches. For the purposes of this Recommended Order, they are identified by the names they were known by during their enrollment at Chamberlain High School. While at Chamberlain High, Ms. Fitzgerald and Ms. Boyas frequently skipped classes and often received passes from the Respondent which excused them from the missed classes. On June 19, 1987, Ms. Fitzgerald and Ms. Boyas were driven to the Respondent's house by a friend, Michael Ramsey. The alleged purpose of the visit was to permit the women to take a photograph of the Respondent. Upon arriving at the house, the two women went around to the rear of the house and attempted to look through the windows. Because the blinds were closed, they could not see inside the house. The two women then walked back to the front of the house and knocked on the door. The Respondent opened the door and invited them in. A few minutes later, Mr. Ramsey went to the front door and was also invited inside by the Respondent. After the three students were inside, the Respondent provided them with soft drinks and excused himself to shower. While in his bedroom, with the door closed, the Respondent telephoned a coworker with whom he had spoken earlier that day. During the earlier conversation, the Respondent had made arrangements to drive to the coworker's house and get a book. In the second call, the Respondent told the coworker about the students coming to his house and said that he still planned to go to the coworker's house and get the book. Ms. Boyas had to comply with a curfew, so while the Respondent showered, Mr. Ramsey and Ms. Boyas left his house and returned to Ms. Boyas home. Ms. Fitzgerald refused to leave with them, and chose to remain in the Respondent's house. When the Respondent returned to his living room, he saw that only Ms. Fitzgerald remained. She told him that her two friends had left. The Respondent told Ms. Fitzgerald he had an errand to run and invited her to go with him. She agreed to accompany him. The two drove in the Respondent's car to the coworker's house. The Respondent spoke briefly to the coworker and retrieved the book. Ms. Fitzgerald remained in the car. After the brief outing, the two returned to the Respondent's home to find Mr. Ramsey waiting. Mr. Ramsey attempted to convince Ms. Fitzgerald to leave with him, but after she declined, he left. Ms. Fitzgerald and the Respondent reentered the house. He offered her a soft drink and they sat on the sofa and talked. At some point during the evening, they went into his bedroom and engaged in sexual intercourse. Later that same evening, Mr. Ramsey returned and Ms. Fitzgerald agreed to leave with him. Because she had told her mother she was spending the night with Ms. Boyas, Ms. Fitzgerald slept in Mr. Ramsey's truck. Mr. Ramsey drove Ms. Fitzgerald to her home the next morning. During the period from June 19, 1987 to September 8, 1987, the Respondent and Ms. Fitzgerald engaged in sexual intercourse on five occasions. After the meeting on June 19, 1987, the sexual activity was initiated by the Respondent. He would call Ms. Fitzgerald and ask her to meet him at a prearranged location, generally down the street from her home. Each time, she would sneak out her bedroom window and wait for the Respondent. He would pick her up in his vehicle and take her to his house. He would return her to the location after the sexual activity had concluded. The sexual activity took place in his dark bedroom. He wore condoms during intercourse. He asked her not to disclose the relationship because it would damage his teaching career. During the summer of 1987, Ms. Fitzgerald's mother learned that her daughter had been sneaking out of the house. On August 19, 1987, Ms. Fitzgerald's mother received a telephone call from a man identified as "Cliff Durso" who said he was a teacher calling to wish her daughter a happy birthday. On September 8, 1987, Ms. Fitzgerald was involved in an auto accident while skipping school with Ms. Boyas. After leaving the site of the accident, the two women spoke with the Respondent who offered suggestions as to how to deal with the situation. Later that evening, Ms. Fitzgerald and her mother returned home from an appointment to find several people waiting to discuss the auto accident. At that point, Ms. Fitzgerald had not disclosed the accident to her parents. After the nature of the accident was disclosed, Ms. Boyas mother contacted the Respondent, apparently in an attempt to obtain whatever information she could about the accident. The extent of the Respondent's knowledge about the details of the accident is unclear. Late during the evening of September 8, 1987, the Respondent contacted Ms. Fitzgerald. As was the usual procedure, she left her house, went to the prearranged location and was picked up by the Respondent. After the two went to his house and engaged in sexual intercourse, he returned her to the same location. At some point after September 8, 1987, Ms. Fitzgerald's mother discovered hidden behind a poster in her daughter's room, photographs of the Respondent and a series of letters to the Respondent written but not mailed by Ms. Fitzgerald. In the letters, she discussed her activity with him and indicated that she would protect him. Ms. Fitzgerald's mother asked her daughter to explain the letters and the situation with the Respondent. Although the evidence establishes that Ms. Fitzgerald became upset, her actual response to her mother's inquiries is unclear. On September 12, 1987, Ms. Fitzgerald's parents contacted law enforcement officials regarding the activities of their daughter. At her home on September 13, 1987, Ms. Fitzgerald told Hillsborough County Deputy Sheriff James Mock that she had been engaged in a sexual relationship with the Respondent. She identified September 8 as the date of their last sexual activity. She told the deputy she did not want to get the Respondent into trouble. Later on September 13, 1987, after the conversation with Officer Mock had occurred, Ms. Fitzgerald's mother received a telephone call from the man identified as "Cliff Durso," who said he was a teacher of her daughter. The caller stated that he expected to see the mother the next morning at 9:00 a.m. for a school conference at which they would discuss the "problems" being caused by Ms. Fitzgerald. Ms. Fitzgerald's mother described the call as threatening. She did not meet with the caller the next day. On September 14, 1987, Ms. Fitzgerald spoke to another Hillsborough County Deputy Sheriff Detective, M. G. Marino, and recanted her story from the previous day and explained that she'd been "confused." On September 15, 1987, the Respondent was summoned to the principal's office at Chamberlain High School and was met by Officer Marino who advised the Respondent that he was a suspect in a criminal investigation. The officer read a "Consent to Interview" form to the Respondent. The first sentence of the "Consent to Interview" form states, "I, Vincent Paul Durso, do hereby consent to being interviewed by Detective M. G. Marino concerning the offense of sexual battery/in custodial authority." After Officer Marino began reading the form, the Respondent invoked his constitutional right to counsel and exited the principal's office. The interview was not completed. On September 22, 1987, Officer Marino again met with and interviewed Ms. Fitzgerald. At that time, she acknowledged that her recantation was not truthful and told the officer that she had been engaging in sexual activity with the Respondent. On September 23, 1987, Captain Wayne Dasinger of the Hillsborough County School System Security Division met with and interviewed Ms. Fitzgerald. The interview was taped until Ms. Fitzgerald instructed Captain Dasinger to turn the recorder off. She continued to discuss the matter after the recording was stopped. During the discussion, she acknowledged engaging in sexual activity with the Respondent and expressed her concern that the Respondent not get into trouble because of the activity. Also on September 23, 1987, Captain Dasinger met with the Respondent. Captain Dasinger told the Respondent that he was investigating allegations of misconduct with a student. The Respondent declined to be interviewed. On October 5, 1987, the Respondent resigned from the Hillsborough County School System for "personal reasons." The allegations of sexual activity with a student were at least a part of the "personal reasons" cited by the Respondent in his October 5 resignation. In a letter dated November 30, 1987 and written by the Respondent, he "vehemently objects" to the "one dimensional report into my personal life" being placed into his personnel file "especially since it was agreed on October 5th, 1987, that it would not be placed in there in accordance to the conditions of my resignation...." Other than as to the matters at issue in this proceeding, there is no evidence that any other inquiry into the Respondent's "personal life" was conducted or was the subject of any investigation reports. From February 10, 1988 to August 3, 1988, the Respondent was employed in Los Angeles, California. On January 3, 1989, the Respondent submitted an application for employment with Pinellas County School System. On January 15, 1989, the Pinellas County School System received on behalf of the Respondent a reference form which purports to be from the principal of Leto High School. The signature is illegible. The evidence establishes that the Respondent received the reference forms with his application form, wrote his name and address at the top of each reference form, and distributed the forms to his "references." The Leto reference form was completed and signed by someone other than a principal of Leto High School. The form was not completed by any person employed as the principal of Leto High School during or since the employment of the Respondent at the school. The Leto reference form was not completed by any person employed as an assistant principal or secretary to the principal of Leto High School during or since the employment of the Respondent at the school. The allegations related to the Respondent became a matter of public knowledge after an article appeared in a local newspaper. According to the Superintendent of the Pinellas County School System, School Board practice and policy provides that any type of sexual conduct between a teacher and a student constitutes just cause for termination of the offending teacher's employment. Such conduct further constitutes misuse of the teacher's position and impairs the effectiveness of the teacher in the classroom. At the hearing, the Respondent sought to establish his activities on June 19 and September 8, 1987, which would "prove" that Ms. Fitzgerald's recollection was fabrication. The greater weight of the credible and persuasive evidence establishes that the events occurred as set forth in the preceding findings.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The School Board of Pinellas County enter a Final Order terminating the employment of Vincent P. Durso. The Commissioner of Education enter a Final Order permanently revoking the teaching certification of Vincent P. Durso. DONE and ENTERED this 28th day of August, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-2994 and 96-0861 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Pinellas County School Board The Pinellas County School Board's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 7. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 24. Rejected, unnecessary. 28-29. Rejected, subordinate. 31. Rejected, unnecessary. 33. Rejected, unnecessary. 35. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 55-58. Rejected, unnecessary. 59. Rejected, cumulative. 62. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 68-69. Rejected, unnecessary. Petitioner Frank T. Brogan, Commissioner of Education The Commissioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 23. Rejected, unnecessary. 27-28. Rejected, subordinate. 30. Rejected, unnecessary. 32. Rejected, unnecessary. 34. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 54-57. Rejected, unnecessary. 58. Rejected, cumulative. 61. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 67. Rejected, unnecessary. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649 Karen Barr Wilde, Executive Director Education Practices Commission 224B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 J. David Holder, Esquire 1408 North Piedmont Way Tallahassee, Florida 32312 B. Edwin Johnson, Esquire 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 34616
The Issue The issue is whether Petitioner should be dismissed from his employment as a tenured professor at Florida A & M University as proposed in a termination letter dated October 17, 2003, on the grounds that he violated Rules 6C3-10.103 and 6C3-10.230, Florida Administrative Code.
Findings Of Fact Petitioner, Dr. Donald Allen, was hired by Respondent, Florida A & M University, as an associate professor in 1993. Three to four years later, Petitioner attained the status of tenured professor, which he held until his termination from employment on September 18, 2003. Petitioner is also known as Dr. Daudi Ajani ya Azibo. While employed by Respondent, Petitioner authored numerous scholarly articles and books. Dr. Allen was recognized by the International Association of Black Psychologists as a distinguished psychologist. Petitioner has also been recognized by the Journal of Black Psychology for his work and, as a result, Respondent’s Psychology Department has been regarded as the top department in Black Psychology. The Journal of Black Psychology has devoted two issues solely to Petitioner’s work, a heretofore unprecedented move. During the fall semester of 2002, Petitioner taught a course for Respondent in Black Psychology. The class held approximately 100 students, one of whom was a woman named Brandi McSwain. Ms. McSwain received a passing grade on her first test in Petitioner’s class, but received a failing grade on her second test when she and three other students were caught cheating on the test. Petitioner informed the four students who had cheated on the test that they would have to pass the final two tests in the class in order to receive a passing grade. Each of the four students, except Ms. McSwain, passed the final two tests. Ms. McSwain approached Petitioner after class on the Thursday before Thanksgiving 2002, to discuss her failing grade on the second test while Dr. Allen was conducting office hours in an adjacent classroom. Ms. McSwain asked Petitioner if she could earn extra credit to make up for her failing grade. She offered to “do anything” in order to improve her test score. Dr. Allen asked Ms. McSwain to write her telephone number on the test paper so that he could contact her about her failing grade. Requesting a student’s telephone number was something Petitioner routinely did when he had too many students to handle during office hours. On November 23, 2002, Petitioner called Ms. McSwain to discuss her failing test score. Ms. McSwain offered to write a research paper or perform another assignment in order to earn credit for the failing grade. Petitioner informed Ms. McSwain that she would have to take the remaining two tests, along with the other three students who had cheated, then he would work with her to improve her score on the test on which she had been caught cheating. During the telephone conversation, a discussion took place between Dr. Allen and Ms. McSwain concerning trading sexual favors for a better grade on the failed test. Petitioner claims that Ms. McSwain initiated the discussion of exchanging sex for an “A” on the test. Ms. McSwain claims that Dr. Allen initiated the conversation of the exchange of sex for a good grade. Petitioner told Ms. McSwain that he did not trade sex for grades. Ms. McSwain told Petitioner that she just wanted to have sexual relations with him, not in exchange for grades, but because she had a “crush” on him. Petitioner believed that Ms. McSwain was attempting to exchange sexual relations for an “A” grade on the test she failed, and he repeatedly told her that he would not exchange sex for an improved grade. He stated the following: “Get the hell out of here. You’ve got to be kidding. There is no way you want me on you. I’m short, fat, bald, and 50.” Ms. McSwain convinced Petitioner that she wanted to have sex with him regardless of the impact on her grade. She said the sex she was offering was not about grades. “No sir, I just want to have sex with you.” Ms. McSwain purchased a tape recorder at a local Wal-Mart so that she could tape the conversations she had with Petitioner concerning their proposed sexual liaison. Petitioner and Ms. McSwain exchanged several telephone calls concerning arranging a sexual liaison. They finally agreed to meet at the Albertson’s grocery store on North Monroe Street in Tallahassee, then to proceed to a motel down the street. Petitioner and Ms. McSwain met at the Albertson’s, then proceeded to the Super 8 Motel down the street, arriving around midnight. Petitioner proceeded to rent the room in his own name, paying cash, while Ms. McSwain waited in her car. Petitioner came out to Ms. McSwain’s car and told her the room number, then he went up to the motel room. Ms. McSwain joined him in the room a few minutes later. Upon entering the room, and on several occasions when she was in the room with Dr. Allen, Ms. McSwain asked if she was going to get an “A” if she performed various sexual acts with him. Petitioner and Ms. McSwain discussed the sexual acts that he wanted her to perform and she repeatedly asked him if she was going to get her “A” if she performed one or another of the acts. Dr. Allen repeatedly told Ms. McSwain that this was not about grades and that he refused to trade sex for grades. Ms. McSwain testified that she spent no more than five minutes in the motel room with Petitioner, yet the tape recording she made while she was with Petitioner lasted approximately 30 minutes. Petitioner and Ms. McSwain caressed and discussed explicitly the sexual acts in which they were going to engage. Ms. McSwain began to dance for Petitioner and, as she began to remove her clothes, asked if he was going to give her an “A” for what she was doing or, presumably, for what she was about to do with him. Petitioner continued to tell her that “there is no grade in this.” At some point in the motel room, before any actual sexual intercourse took place, Ms. McSwain removed the tape recorder from her purse and said to Petitioner “I got you!” As she left the room with her tape recorder in hand, Ms. McSwain told Petitioner that he had better give her an “A” or she was going to turn over the tape to his wife and the people at Florida A & M. Dr. Allen did not dispute meeting Ms. McSwain at the motel, or that they agreed to engage in sex. Petitioner asserts a consensual sexual relationship and Ms. McSwain asserts a “sex for grades” scenario. The audiotape of the meeting at the hotel is largely inaudible, although enough of it is audible to make the following conclusions: Approximately 10 minutes into the tape, Ms. Mcswain states she is trying to get an “A.” Approximately 12 minutes into the tape, Dr. Allen says, “not related to grade”; Ms. McSwain responds that she is trying to get a good grade. Approximately 13 minutes into the tape, Dr. Allen states he does not swap grades for sex. Approximately 14-15 minutes into the tape, Ms. McSwain states that she is not having sex unless she gets a grade. Approximately 15 minutes into the tape, Ms. McSwain states she wants an “A,” then asks “I’ll get an ‘A’ if I have sex?” Approximately 17 minutes into the tape, Ms. McSwain states, “if I don’t get an ‘A,’ I’m not going to do it.” Approximately 18-19 minutes into the tape, she asks for an incomplete and states that she is not going to allow this class to ruin her life. Approximately 22-23 minutes into the tape, Ms. McSwain says, “I want an ‘A,’ and no one hears this if I get it. I don’t want to hurt anyone.” Approximately 31 minutes into the tape, Ms. McSwain leaves the motel room. Petitioner has had no contact with Ms. McSwain since November 24, 2002. Ms. McSwain did not return to the Black Psychology class for the remainder of the semester following their encounter at the motel. Ms. McSwain reported the incident with Petitioner to the Office of Equal Opportunity Programs on November 27, 2002, and met with the Director, Ms. Carrie Gavin. Ms. Gavin advised Ms. McSwain of Respondent’s rules and regulations and provided her with a form for filing a formal complaint against Petitioner. Ms. Gavin met with Ms. McSwain again on December 4, 2002, at which time she reviewed the audiotape made by Ms. McSwain of the meeting in the motel room. Ms. McSwain did not file a formal complaint at that time. Petitioner completed his grades on December 13 or 14 and submitted them to Respondent on or before December 16, 2002. On December 17, 2002, Ms. McSwain filed a complaint of sexual harassment against Petitioner, after Petitioner’s grades had been posted. Ms. Gavin notified Petitioner of the filing of the formal complaint by Ms. McSwain. Petitioner filed a written response to the allegations of the formal complaint. Ms. Gavin conducted an investigation into the allegations of Ms. McSwain’s complaint and concluded that “there was merit to the complaint.” The report generated by Ms. Gavin recommended that Petitioner should be terminated from employment because of prior disciplinary action pursuant to Rule 6C3-10.103, Florida Administrative Code. The report found that Petitioner had engaged in quid pro quo sexual harassment and had created a hostile environment with respect to Ms. McSwain. The basis of these charges was that “a sexual relationship was discussed during the point of dealing with grades” in discussion between a professor and a student. The recommendations from Ms. Gavin were reviewed by Respondent’s President, Dr. Fred Gainous, who issued a letter upholding the termination of Petitioner pursuant to Rules 6C3-10.103 and 10-230, Florida Administrative Code. Ms. Gavin indicated that over the last five years, five or six informal sexual harassment complaints and 15 or 16 formal sexual harassment complaints had been filed with her office. Of the formal complaints, eight had been substantiated and resulted in disciplinary action being taken. Respondent believes in the principle of progressive discipline. Disciplinary actions range from a written reprimand to a dismissal. Any employee with a second substantiated violation of the discrimination rule receives a recommendation of dismissal. Dr. Frederick Humphries, Respondent’s former president, issued a written reprimand to Petitioner for retaliation on April 20, 1999. Petitioner had retaliated against a group of students by providing a survey to “those members of his class who had not filed a sexual harassment complaint against him.” Also contained in that letter was language stating that any further infractions could lead to termination. Dr. Larry Rivers, Dean of Respondent’s College of Arts and Sciences, was informed of Ms. McSwain’s sexual harassment complaint by Dr. John Chambers, his assistant dean at the time, who informed him that Ms. McSwain did not feel comfortable returning to Petitioner’s class. Dr. Rivers instructed Mr. Chambers to make alternative arrangements for Ms. McSwain to complete the class. Petitioner issued Ms. McSwain a grade of “I” (incomplete) in the Black Psychology class. Ms. McSwain enrolled in one class during the summer semester 2003, but failed to complete it. She withdrew from the University in July 2002. Dr. Rivers has taught both undergraduate and graduate level courses for Respondent for approximately 25 years. In his role as a department chair and as dean, he has discussed his belief that it is always unprofessional for a professor to have any type of relationship, other than an academic one, with a student. The teacher-student relationship is one based upon power, with the teacher wielding the power. Respondent has no rule or regulation that prevents a faculty member from having a consensual relationship with an adult (greater than age 18) student.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the dismissal of Dr. Allen from his position at Florida A & M University. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: H. B. Stivers, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Linda Barge-Miles, Esquire Florida A & M University Office of the General Counsel Lee Hall, Room 300 Tallahassee, Florida 32399-3100 Avery D. McKnight, Acting General Counsel Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issue is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint. The Petitioner presented the testimony of Linda Rondone, Jane E. Vowell, Susan C. Vassilev, Kyril P. Vassilev, III and Johnny B. McKenzie. Petitioner's Exhibits 1-5 were admitted in evidence. Official recognition, pursuant to Section 90.202, Florida Statutes, was taken of the statutes and violations charged in the case of State of Florida v. Jeffrey Siegfried, 85-1568 MMA02, and the Code of Ethics of the Education Profession in Florida, Section 6B--1.01, Florida Administrative Code. The Respondent, Jeffrey W. Siegfried, failed to appear for the formal hearing despite notice to him personally and to his former counsel who was granted leave to withdraw. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 440229, issued by the Department of Education for the State of Florida. The Respondent's Teaching Certificate covers the areas of English and Reading. On or about June 13, 1978, the Respondent applied for a teaching certificate for the State of Florida. The Respondent filled out the application and answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application in front of a notary on June 13, 1978, certifying that all information pertaining to the application was true and correct. Petitioner presented charging documents from the Court of Common Pleas of Montgomery County, Pennsylvania, in which the Respondent was charged with three crimes alleged to have occurred on June 7, 1975, to wit: Unlawful Possession of a Controlled Substance, Corruption of Minors and Disorderly Conduct. Further, the documents indicated that the Respondent was sentenced on December 4, 1975, to the Program of Accelerated Rehabilitative Disposition on the charges of Possession of Marijuana and Corruption of Minors. The program involved a twenty four (24) month probationary period and payment of $350.00 restitution. The charge of Disorderly Conduct was nolle prossed. On July 20, 1979, the Respondent filled out an Application of Instructional Position for Palm Beach County, Florida. The Respondent in said application again made no mention of his criminal history. He again checked off "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application certifying that all the answers given were true. In the fall of 1980, the Respondent was employed by the Palm Beach County School District. On January 24, 1986, an Information was filed in the County Court of Palm Beach County, Florida, charging the Respondent with Possession of Marijuana on January 15, 1985 and Child Abuse on December 23, 1984. Susan C. Vassilev, mother of Kyril Vassilev, testified that she had been friends with the Respondent for 3 or 4 years preceding December of 1984. Throughout their acquaintance, the Respondent was employed as a full time teacher for the Palm Beach County School Board. Mrs. Vassilev's son, Kyril, occasionally did yard work and odd jobs for the Respondent. On December 23rd of 1984, Mrs. Vassilev reminded her son about a Christmas Eve dinner invitation at the Respondent's house. He answered her, "No, I'm not going there. He's a fag. I don't want anything to do with him." Mrs. Vassilev than testified as to what her son told her which was again reiterated by her son when he testified later in the hearing. In November and December, 1984, Kyril Vassilev was thirteen (13) years old. He had met the Respondent through his mother and knew the Respondent to be a teacher in Palm Beach County. Kyril went to the Respondent's house in late November or early December of 1984 to do some yard work for the Respondent. The Respondent picked Kyril up and while in the Respondent's van, the Respondent suggested that he knew a way for Kyril to earn a lot of money and only work two hours a day, 2 or 3 times a week. After Kyril mowed the Respondent's yard, he came into the Respondent's house for a drink. He asked the Respondent how he could make such easy money. The Respondent told him it was called child pornography and explained that it involved Kyril posing for nude photographs. The Respondent showed Kyril photographs of a nude boy in a magazine and claimed that he had helped the boy earn money by arranging for him to pose nude. Kyril told the Respondent that he wasn't interested and went back outside to continue staining the backyard fence. After a while, Kyril went back inside for another drink. The Respondent at that point told Kyril that the photographers had called and were willing to pay him $200.00 for posing nude. Kyril again told the Respondent that he was not interested. After finishing work, Kyril again came into the house and the Respondent told him the photographers had called again and upped the price to $500.00. Kyril told the Respondent no again. The Respondent sent Kyril to buy camera film at Eckerds. Kyril testified that he was afraid, but he went and got the film and brought it back. Again the Respondent asked Kyril if he would reconsider. Kyril, again, declined. Before Kyril left, the Respondent informed him that he couldn't tell his mother or anyone else. The Respondent told Kyril that he need not worry about his mother finding out, because the Respondent would open a secret bank account for him, where he could keep the money. Before leaving for the day, Kyril testified that, the Respondent told him "they" had called and were now willing to pay up to $1,000. The Respondent took Kyril home and enroute again tried to talk him into posing nude. Kyril again declined. The Respondent indicated that Kyril could make even more money doing things with other boys in front of the camera. Kyril was waiting until after Christmas to tell his mother, but because of the invitation to the Respondent's residence for Christmas Eve dinner, he decided to tell his mother on December 24, 1984. Mrs. Vassilev confronted the Respondent with her son's allegations and he claimed to be working undercover for school security to infiltrate a child pornography ring. Johnny B. McKenzie testified that as Director of Security for Palm Beach School Board that he had no knowledge of the Respondent working for school security. On July 11, 1985, the Respondent pled no contest to Count I, Possession of Marijuana less than 20 grams and Count II, Child Abuse. Judge Karen Martin, County Court Judge in and for Palm Beach County, Florida, withheld adjudication as to Count I and adjudicated the Respondent guilty of Count II. The Respondent was placed on twelve (12) months probation with special conditions that he: (1) make no contact with any child under the age of 18 years without another adult being present; (2) make no contact with the mother of the victim and/or the victim, himself; (3) undergo substance abuse evaluation and treatment if needed; and, (4) undergo psychological evaluation and counseling if needed. Ms. Jane E. Vowell, then acting as Assistant Superintendent, testified that on or about January 17, 1985, the Respondent was called into her office and she informed him of the charges against him, and told him that she would recommend to the Superintendent that he be suspended with pay and given an opportunity to resign. The Respondent resigned on February 4, 1985. Ms. Vowell testified that the Respondent's teaching certificate should be permanently revoked because he lacked the moral character needed to be a teacher responsible for children. On March 6, 1985, the Respondent submitted an Application for Instructional Position to the Broward County School Board. The Respondent again answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" He again signed the application certifying that all the information given on the application was true and correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the teaching certificate of Jeffrey W. Siegfried. RECOMMENDED this 5th day of February 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2020 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1-33 are adopted in substance in Findings of Fact 1-33. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jeffrey W. Siegfried Post Office Box 172 Truro, Massachusetts 02666 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent reported for duty while under the influence of alcohol in violation of section 1012.795(1)(j), Florida Statutes (2016), and Florida Administrative Code Rule 6A-10.081(2)(a)1.1/, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Jones held Florida Educator's Certificate No. 866702, covering the area of Music, which was valid through June 30, 2018. At all times pertinent to the Administrative Complaint, Ms. Jones was employed as a music teacher at Village Green in the St. Lucie County School District. On May 8, 2017, Ms. Cynthia Garcia reported to work at Village Green around 7:30 a.m. The desk where visitors and staff members sign in is adjacent to the front office where Ms. Garcia works. Sometime between 7:30 a.m. and 7:50 a.m., Ms. Jones signed in at the desk and crossed the front office. Ms. Jones said hello to Ms. Garcia and apologized for the way that she looked. Ms. Jones had on no makeup and her hair or wig was unkempt. Ms. Garcia asked Ms. Jones if she was okay because she was acting a little giddy and didn’t seem to be herself. Ms. McQueen was in the hallway at Village Green going to her classroom when Ms. Jones called out to her. Ms. McQueen went over to her to see what she wanted. Ms. Jones was laughing and told Ms. McQueen that the students would not recognize her because she wasn’t wearing any makeup. Ms. McQueen smelled alcohol and noticed that Ms. Jones’ was inappropriately dressed and that her hair was untidy. Ms. McQueen testified that Ms. Jones was slurring her words, but she was able to understand what Ms. Jones was saying. Ms. McQueen testified that Ms. Jones did not have any coordination problems or trouble walking. Ms. McQueen told Ms. Jones to go to her office to straighten herself up. Ms. McQueen testified, “And my reason for doing that, because I wanted to get her away from the students, so that I could go to the office to get help, to tell administration.” Ms. McQueen testified that while she was talking with Ms. Jones, a few students began waiting outside of the music room where they were to rehearse for a musical production. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen told Ms. Brown that she thought Ms. Jones was drunk, or had been drinking. Ms. Brown asked Ms. McQueen to take over her responsibility to stay with the children who were having breakfast so that Ms. Brown could go see Ms. Jones in the music room. Ms. Brown testified that when she spoke to Ms. Jones: [Y]ou could smell the alcohol, and her eyes was swollen and the whites was red. And the students kept trying to come through the back part of the –- it’s like the stage, because they was practicing. They practice in the morning for a play. And I wanted to try to keep the students from seeing her, so I like get in front of her. * * * Because I didn’t want them to see how she looked. Because her hair was kind of wild and her top was up, you can kind of see her stomach. I didn’t want the students to see Ms. Jones like that. Ms. Brown told Ms. Jones she needed to get herself together, and Ms. Jones responded that she would leave the school. Ms. Brown asked Ms. Jones if she wanted her to get someone to help, was told no, and she then told Ms. Jones that she would tell the school administration that they would need to get a substitute teacher for the day. This credible, eyewitness testimony of Ms. Jones’ colleagues that she smelled of alcohol, had swollen and bloodshot eyes, exhibited slurred speech, and was acting in an unusual, “giddy” manner is sufficient evidence to reasonably infer that Ms. Jones was under the influence of alcohol when she reported to the school for duty on the morning of May 8, 2017. Ms. McQueen and Ms. Brown left campus, with Principal Barrett-Baxter’s permission, to make sure that Ms. Jones had arrived at her home. When they arrived, they saw her rental car parked there. Later the same morning, Ms. Jones returned to Village Green. She went to the office area to talk to Principal Barrett- Baxter. It was not clearly shown that Ms. Jones intended to return to duty or be in contact with students when she returned. Principal Barrett-Baxter said that she could smell alcohol from across the desk, and confirmed the others’ earlier observations that Ms. Jones’ appearance was unacceptable. Ms. Garcia also credibly testified that the smell of alcohol was so strong that it lingered in the room after she left. Based on her observations and reports, Principal Barrett-Baxter directed Ms. Jones to have a reasonable suspicion drug test conducted. Officer Ken Rodriguez, who transported Ms. Jones for the testing, also testified that he smelled alcohol, that Ms. Jones was a “little foggy,” and that she appeared to be under the influence of alcohol. Two breathalyzer tests were conducted at Absolute Testing, indicating that Ms. Jones had blood alcohol level readings of .186 and .191. The events after Ms. Jones returned to Village Green were of little value in considering the charge in the Administrative Complaint because of the interplay of two circumstances: 1) Ms. Jones spent time at home alone after her initial presentation at Village Green and before the time the alcohol test was conducted; and 2) it was not clearly shown that Ms. Jones was reporting for duty to teach students when she returned to the school. There was no evidence of any prior discipline involving the Florida Educator Certificate of Ms. Jones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Renya Jones in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1.; renewing her teaching certificate and placing her on probation for a period of three years; requiring her to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Commission; and requiring her to pay administrative fees and costs. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2018.
The Issue The issues here are as presented through an administrative complaint brought by the Petitioner against Respondent. In particular, it is alleged that Respondent falsified applications related to her certification as a teacher in the State of Florida and her employment as a teacher in the Duval County, Florida School System. In particular it is alleged that Respondent falsely answered questions pertaining to her arrest or conviction for a misdemeanor offense in Jacksonville, Florida. For these acts, Respondent is alleged to have violated Section 231.28(1), Florida Statutes, in that she has obtained her teaching certificate by fraudulent means and been guilty of personal conduct which seriously reduces her effectiveness as an employee of the school system. Moreover, it is alleged that further fraud was committed related to Rule 6B- 1.06(5)(a)(g) and (h) Florida Administrative Code, pertaining to fraudulent statements or disclosures.
Findings Of Fact On April 28, 1981, Shirley Lambert made application to be certified as a teacher in the fields of health education and physical education. This certification request was made with a State of Florida, Department of Education Teacher Certification section. A copy of the application may be found as Petitioner's Exhibit No. 2, admitted into evidence. As part of the application, question V asks, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Lambert responded in the negative. Lambert also signed the application form below that portion of the application related to notarization which states "I understand that Florida Statutes provide revocation of a teacher's certificate if evidence and proof is established that the certificate is obtained by fraudulent means. (Section 231.28 FS). I certify that all information pertaining to this application is true and correct." As a result of this application, Respondent was issued a teacher's certificate from the State of Florida, Department of Education in the field of physical education. The date of the issuance was June 25, 1982, for a period ending June 30, 1983. A copy of this certificate is found as petitioner's Exhibit No. 1, admitted into evidence. In fact, as was known to the Respondent at the time of making the application for certificate, she had been arrested and charged with petit theft for an offense that occurred on April 11, 1978, the taking of clothing less than $100 in value. The basis of the charge was Section 812.014(2)(c), Florida Statutes. Respondent pled guilty to this offense and was given a ten day jail sentence which was suspended and probation imposed for a period of six months. The particulars of this disposition may be found in Petitioner's composite Exhibit No. 3, which contained records of court related to the offense. On August 10, 1982, Respondent made application for employment with the Duval County School Board, Jacksonville, Florida. A copy of that application may be found as Petitioner's Exhibit No. 4. This application had a similar question related to prior criminal offenses. The application stated, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Again, the question was answered in the negative although Respondent was aware of the aforementioned criminal violation at the time she answered this questionnaire. The application was signed by Respondent and at the place of signature, Lambert was exposed to the language at the signature line which states "I certify that all information on this application is true and accurate and recognize that it is subject to verification and that my employment and/or continuance thereof is contingent upon its accuracy." Not being mindful of her prior criminal involvement the Duval County School System hired Respondent as a substitute teacher on September 13, 1982. Her criminal record was later disclosed to the administrators within that system and her employment was terminated effective October 12, 1982. Had the administration known of the prior criminal involvement, they would not have hired Lambert in view of the fact that they could be more selective and not choose a person with a prior criminal involvement, given the high number of applicants for jobs within their system. Dalton Epting, Director of Certified personnel of Duval County Public Schools, felt that a prior conviction of a misdemeanor offense of petit larceny would be in violation of standards required of teachers in Duval County. Likewise, the offense of petit larceny would be sufficient grounds to deny certification when requested of the State of Florida, Department of Education. Respondent testified that in the course of the final hearing and indicated in discussing both applications which are at issue that she read those applications too fast and made a mistake in answering the questions related to her prior criminal involvement. She felt in effect that she had not read the applications carefully. Moreover, in giving her explanation at final hearing, even though she recognized her prior criminal involvement in the way of arrest and the plea of guilty to petit theft, she stated that she did not feel the questions in the applications related to misdemeanors. She was of the opinion that the questions pertained to more serious crimes. Given the plain language of the questions in the application for certification with the State of Florida and the application for a position with the Duval County School Board and the precautionary statements related to accuracy and possible penalties for inaccuracy, Respondent's explanations are not plausible. Respondent's comments do not constitute a reasonable excuse for having falsified her applications for certification and employment.
